Other Disciplinary Proceedings

Compulsory Discipline

If an attorney has been convicted of or pleaded nolo contendere to,
or has been put on probation, with or without an adjudication of guilt,
for a serious or intentional crime (as those terms are defined in the
TRDP), the CDC will seek compulsory discipline.

Crimes that subject a lawyer to compulsory discipline include
barratry; any felony involving moral turpitude; any misdemeanor
involving theft, embezzlement, or fraudulent or reckless
misappropriation of money or property; any crime involving
misapplication of money or other property held as a fiduciary; and any
attempted conspiracy or solicitation of another to commit any of these
crimes.

These proceedings are filed with the Board of Disciplinary Appeals.
The criminal judgment or order of deferred adjudication is conclusive
evidence of the attorney’s guilt of the commission of the crime.
If the criminal conviction of a serious or intentional crime is on
appeal, the lawyer’s license shall be suspended during the
pendency of the appeal. Where the sentence includes any period of
incarceration other than as a condition of probation, the lawyer shall
be disbarred. Where the criminal sentence is fully probated, BODA has
the discretion to either suspend for the period of criminal probation
or disbar the attorney. Appeals from compulsory discipline decisions
are to the Supreme Court of Texas.

Assumption of
Practice

Any interested person, including the CDC or a client, may petition
the district court in the county of the attorney’s residence to
assume jurisdiction of the attorney’s law practice under certain
circumstances. A district court can be petitioned to appoint a
custodian for an attorney’s files in the event that the attorney
has died; disappeared; resigned; become inactive; been disbarred or
suspended; or become physically, emotionally, or mentally disabled and
cannot, as a result, provide legal services necessary to protect the
interests of clients.

Upon the filing of a verified petition, the court issues a show
cause order to the attorney or his or her personal representative or,
if none, the person having custody of the lawyer’s files,
directing him or her to show cause why the court should not assume
jurisdiction of the attorney’s law practice. Upon establishment
of grounds for the assumption, the court enters an order appointing one
or more lawyers as custodians and ordering what must be done with
respect to the files.

Interim Suspension

If the Chief Disciplinary Counsel determines during the course of
investigating a Complaint that one or more grounds exist to support
seeking an interim suspension of the respondent’s law license,
the CDC can seek authority from the Commission to pursue an interim
suspension.

If such authority is given, a petition is filed in a district court
of proper venue, service is obtained on the respondent, and the court
is to set a hearing within 10 days. The court may suspend the attorney
pending final disposition of the disciplinary action if the court finds
by a preponderance of the evidence that the respondent poses a
substantial threat of irreparable harm to clients or prospective
clients. Any of the following elements conclusively establishes such a
substantial threat of irreparable harm:

Conduct that includes all elements of a serious crime (as that
term is defined in the disciplinary rules); or

Three or more acts of professional misconduct as defined in the
rules, whether or not there is harm; or

Any other conduct that, if continued, will probably cause harm
to clients or prospective clients.

Reciprocal
Discipline

If an attorney is disciplined in another jurisdiction where the
attorney is licensed to practice law, the CDC may seek the identical or
“reciprocal” discipline. These proceedings are filed with
the Board of Disciplinary Appeals. The CDC files a petition for
reciprocal discipline, which includes a certified copy of the order of
discipline from the other jurisdiction and requests that the lawyer be
disciplined in Texas. BODA notifies the attorney, who has 30 days to
show why imposition of the identical discipline in Texas would be
unwarranted. Defenses available to the attorney include the
following:

The procedure in the other jurisdiction was so lacking in notice
or opportunity to be heard that the attorney was deprived of due
process.

There was such an infirmity of proof in the other jurisdiction
that the conclusion that was reached should not be accepted as
final.

Imposition of identical discipline would result in grave
injustice.

That the misconduct established in the other jurisdiction
warrants a substantially different discipline in this state.

That the misconduct for which the attorney was disciplined in
the other jurisdiction does not constitute professional misconduct in
this state.

Absent establishment of a defense, BODA shall impose discipline
identical, to the extent practicable, with that imposed by the other
jurisdiction. Appeals from decisions in reciprocal discipline cases are
to the Supreme Court of Texas.

Disability
Suspension

A disability is any physical, mental, or emotional condition that
results in an attorney’s inability to practice law or to carry
out his or her professional responsibilities. No substantive rule
violation is required to find that an attorney has a disability.

If the CDC during a Just Cause investigation, or an evidentiary
panel during the course of an evidentiary proceeding, believes that an
attorney is suffering from a disability, the matter is forwarded to
BODA for appointment of a district disability committee. The district
disability committee determines whether the respondent is, in fact,
suffering from a disability and, if so, indicates such to BODA, which
then enters an order suspending the attorney for an indefinite
period.

The disability process tolls the four-year statute of limitations
for disciplinary matters.

Revocation

Violation of any term of the probated portion of a suspension may
subject a respondent lawyer to a “revocation” of the
probation resulting in an active suspension from the practice of law.
When a judgment is entered by an evidentiary panel of the grievance
committee, the revocation proceeding is filed before BODA. When a
judgment is entered by a district court, the revocation proceeding is
filed with the district court. If the CDC proves a violation of
probation by a preponderance of the evidence, the probation is revoked
and the respondent attorney is suspended from the practice of law
without credit for any probationary period served. An order revoking a
probated suspension cannot be superseded or stayed pending an appeal.